WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under Part V of the Child, Youth and Family Services Act, 2017 (being Schedule 1 to the Supporting Children, Youth and Families Act, 2017, S.O. 2017, c. 14), and is subject to subsections 87(7), 87(8) and 87(9) of the Act. These subsections and subsection 142(3) of the Act, which deals with the consequences of failure to comply, read as follows:

87.— (7) Order excluding media representatives or prohibiting publication.

Where the court is of the opinion that the presence of the media representative or representatives or the publication of the report, as the case may be, would cause emotional harm to a child who is a witness at or a participant in the hearing or is the subject of the proceeding, the court may make an order:

(c) prohibiting the publication of a report of the hearing or a specified part of the hearing.

87(8) Prohibition re identifying child.

No person shall publish or make public information that has the effect of identifying a child who is a witness at or a participant in a hearing or the subject of a proceeding, or the child's parent or foster parent or a member of the child's family.

87(9) Prohibition re identifying person charged.

The court may make an order prohibiting the publication of information that has the effect of identifying a person charged with an offence under this Part.

142.— (3) Offences re publication.

A person who contravenes subsection 87(8) or 134(11) (publication of identifying information) or an order prohibiting publication made under clause 87(7)(c) or subsection 87(9), and a director, officer or employee of a corporation who authorizes, permits or concurs in such a contravention by the corporation, is guilty of an offence and on conviction is liable to a fine of not more than $10,000 or to imprisonment for a term of not more than three years, or to both.

Court Information

Ontario Court of Justice

Date: 2019-05-30

Court File No.: Brampton 16-20108

Between:

The Children's Aid Society of the Region of Peel, Applicant

— AND —

P.D., Respondent/Mother

— AND —

K.D., Respondent/Father

Before: Justice Lise S. Parent

Heard on: April 24, 2019

Reasons for Judgment released on: May 30, 2019

Counsel

• A. Rozario — counsel for the applicant society
• P.D. — self-represented party
• Lorne Levine — counsel for the respondent/father

Decision

PARENT J.:

Background

[1] This proceeding involves the child S.D-D.

[2] On August 31, 2016, the Children's Aid Society of the Region of Peel (hereinafter the "Society"), filed a Protection Application seeking an order placing the child in the care of the mother, P.D., pursuant to a six month supervision order with terms and conditions and access to the father, K.D., at their discretion.

[3] The Protection Application sought this order given the high conflict between the Respondents, the allegations by P.D., that S.D-D. had been sexually abused by K.D. and K.D.'s denial of any wrong doing.

[4] At the time of the filing of the Society's Protection Application, the Respondents were involved in custody/access proceedings also in this Court.

[5] On September 7, 2016, Sullivan, J. granted a temporary order, on a without prejudice basis, placing S.D-D. in the care of P.D., subject to the supervision of the Society with nine terms and conditions.

[6] The order of Sullivan, J. further provided that access between S.D-D. and K.D. was to occur at the Society's office twice weekly for a duration of two hours.

[7] On December 13, 2016, Sullivan, J., following a contested motion heard on November 23, 2016, ordered the re-instatement of K.D.'s access to S.D-D., in accordance with the orders of Khemani, J. and Thibideau, J. previously granted within the domestic proceedings between the Respondents.

[8] The result of the order of Sullivan, J. was that the access between S.D-D. and K.D. would now occur every second Friday to Sunday and on alternating Fridays from 3:30 to 7:30 p.m.

[9] Sullivan, J. also added additional terms including that any adults in the presence of S.D-D. not speak negatively about either parent or family members or discuss any court proceedings.

[10] On December 13, 2017, an order was granted, on consent of all parties, for the parents, and the child, at the discretion of the assessor, to undergo a hybrid parenting capacity/psychological assessment. This order did not name the assessor.

[11] On March 7, 2018, the court, following a contested motion, appointed Dr. Jean Wittenburg to conduct the assessment.

[12] On February 21, 2019, the Society filed an Amended Protection Application seeking an order granting leave to withdraw the Protection Application, dated August 31, 2016 and terminating the temporary order of Sullivan, J. dated December 13th, 2016.

Current Application before the Court

[13] The current proceeding before the court is an Amended Amended Protection Application filed on March 19, 2019.

[14] The Application seeks an order as follows:

(i) That the statutory findings be made pursuant to section 90(2) of the Child, Youth and Family Services Act, 2017 (hereinafter CYFSA);

(ii) That a finding that the child, S.D-D., is in need of protection pursuant to Clause 74 (2)(h) of the CYFSA, namely that there is a risk that the child is or is likely to suffer emotional harm resulting from the actions, failure to act or pattern of neglect on the part of the child's parent;

(iii) That there are no further orders required in this proceeding pursuant to section 101(8) of the CYFSA; and

(iv) That the parenting capacity assessment authored by Dr. Jean Paul Wittenberg dated June 14, 2018 be available for use by either parent in their domestic proceeding.

[15] On April 12, 2019, K.D. filed an Answer/Plan of Care. The father, K.D., seeks an order placing S.D-D in his care pursuant to section 102 of the CYFSA and supervised access to the mother, P.D. In his Answer, K.D. denies abusing S.D-D.

[16] On April 15, 2019, the mother, P.D., filed and Answer/Plan of Care. The mother, P.D., seeks the withdrawal of the Society. In her Answer, P.D. maintains her belief that K.D. sexually abused S.D-D.

Proceeding before the Court and Position of the Parties

[17] The Society has brought a motion pursuant to Rule 16 of the Family Law Rules seeking that the order outlined in their Amended Amended Protection Application be granted on a summary basis.

[18] The parents of the child each oppose the motion.

[19] Each parent states, for different reasons, that there are genuine issues requiring a trial and that it would not be just to determine these issues using a summary procedure.

[20] In support of its position, the Society relies on the following materials:

(i) the affidavit of Lara Torrance, Team Leader employed by the Society, sworn March 21st, 2019;

(ii) the affidavit of Samantha Moeller, Legal Administrative Assistant employed by the Society, sworn March 22nd, 2019; and

(iii) the affidavit of Karen Samuels, child protection worker involved with this family from September 14, 2016 to March 5, 2018.

[21] In support of her position opposing the motion, P.D. has filed an affidavit, sworn April 15, 2019.

[22] In support of his position opposing the motion, K.D. has filed an affidavit, sworn April 12, 2019.

Preliminary Issues

[23] Prior to hearing submissions, I inquired whether counsel for the Society and the father, K.D., were satisfied that the affidavit evidence submitted in support of their respective parties' positions on the motion met the threshold criteria as established by the recently released decision of the Ontario Court of Appeal in Kawartha Haliburton Children's Aid Society v. M.W., 2019 ONCA 316.

[24] Counsel indicated that the Society was prepared to proceed with its motion on the materials filed.

[25] Counsel indicated that he was prepared, on behalf of the father, to proceed with the motion and that there were no preliminary issues to raise on behalf of his client.

[26] I asked P.D. directly whether she was prepared to proceed with the motion or whether she was seeking an adjournment.

[27] This inquiry was required not only in light of the Kawartha decision but also given that P.D.'s affidavit raised three concerns, namely:

(1) the request sought by the Society in its Notice of Motion was not the relief contained in the endorsement of Sullivan, J. dated March 4, 2109, namely leave to seek an order terminating the Society's involvement;

(2) that she had not yet received disclosure from the Society; and

(3) that I would not be considering her request, as outlined in her affidavit, for the appointment of the OCL given that this request had not been previously raised before Sullivan, J. when he scheduled the issues to be dealt with at this motion.

[28] In making this inquiry, I was mindful of the principle set out in paragraph 4 of paragraph 80 of the Kawartha decision which reads as follows:

"Judicial assistance must be provided for self-represented litigants. In particular, judges must engage in managing the matter and must provide assistance in accordance with the principles set out in the Statement of Principles on Self-represented Litigants and Accused Persons (2006) (online) established by the Canadian Judicial Council."

[29] P.D. declined the opportunity to speak with Duty Counsel prior to addressing me on these issues. P.D. indicated that she was prepared to proceed with the motion, that her affidavit set out her position and she was not seeking an adjournment.

The Law and Analysis

[30] The Society brings this motion pursuant to Rule 16 of the Family Law Rules (hereinafter referred to as "FLR").

[31] The relevant provisions of Rule 16 read as follows:

RULE 16: SUMMARY JUDGMENT

WHEN AVAILABLE

16. (1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case.

AVAILABLE IN ANY CASE EXCEPT DIVORCE

(2) A motion for summary judgment under subrule (1) may be made in any case (including a child protection case) that does not include a divorce claim.

EVIDENCE REQUIRED

(4) The party making the motion shall serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.

EVIDENCE OF RESPONDING PARTY

(4.1) In response to the affidavit or other evidence served by the party making the motion, the party responding to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.

NO GENUINE ISSUE FOR TRIAL

(6) If there is no genuine issue requiring a trial of a claim or defence, the court shall make a final order accordingly.

POWERS

(6.1) In determining whether there is a genuine issue requiring a trial, the court shall consider the evidence submitted by the parties, and the court may exercise any of the following powers for the purpose, unless it is in the interest of justice for such powers to be exercised only at a trial:

1. Weighing the evidence.
2. Evaluating the credibility of a deponent.
3. Drawing any reasonable inference from the evidence.

[32] The Society, as the moving party, has the burden of proof of satisfying the threshold requirement that there is no genuine issue for trial.

[33] Rule 16 of the FLR requires the moving party to serve an affidavit or other evidence that sets out specific facts showing that there is no genuine issue requiring a trial.

[34] Pursuant to subrule 16 (4.1) the responding party to the motion may not rest on mere allegations or denials but shall set out, in an affidavit or other evidence, specific facts showing that there is a genuine issue for trial.

[35] The responding party must put their best foot forward on the motion. The judge is entitled to assume that the parties have put before the court all of the evidence that they would be able to present at trial. (See: Children's Aid Society of Toronto v. K.T., 2000 O.J. No. 4736 (Ont. C.J.); Sweda v. Egg Farmers of Ontario, 2014 ONSC 1200)

[36] In Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, the Supreme Court of Canada set out a two-step process for determining whether a request for summary judgment should be granted.

[37] The Court's decision sets out that the judge must first determine if there is a genuine issue requiring a trial based on the evidence without using the additional fact-finding powers set out in subrule 16 (6.1) of the FLR.

[38] If, after this initial determination, there still appears to be a genuine issue for trial, the judge may resort to the additional fact finding powers to decide if a trial is required.

[39] In exercising its authority under Rule 16 of the FLR, the court must conduct a careful screening of the evidence to eliminate inadmissible evidence. The court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial. (See: Kawartha, paragraph 3 of paragraph 80).

Admissibility of Evidence

[40] The Society has filed an affidavit sworn by Ms. Karen Samuels on April 2nd, 2019. Ms. Samuels indicates at paragraph 1 of her affidavit that she was the "… ongoing worker for this family from September 14, 2016 to March 5, 2018…."

[41] The affidavit of Ms. Samuels attaches as exhibits a police occurrence report from the Peel Regional Police relating to an occurrence on April 14, 2017 and e-mail communications between herself and an individual she identifies in her affidavit at paragraph 70 as "Ms. Angelie Sharma of [the child's school]."

[42] The evidence relied upon by the Society does not include an affidavit sworn by the child protection worker involved with this family since March 5, 2018 and on an ongoing basis.

[43] The Society has filed the affidavit of Ms. Lara Torrance who deposes at paragraph 1 that:

"…I have been the supervising Team Lead for this file since September 14, 2016. I am the supervisor for both Ms. Karen Samuels, who was the ongoing worker from September 14, 2016 to March 5, 2018 and Ms. Nada Bastasin, who has been the ongoing worker since March 5, 2018."

[44] The affidavit goes on to indicate at paragraph 6 that Ms. Bastasin has been on leave from her position at the Society since February 2019 and that there is no anticipated return date. Attached as Exhibit "A" to this affidavit are Ms. Bastasin's cases notes for the period from March 7, 2018 to January 23, 2019.

[45] The affidavit of Ms. Torrance, at paragraph 7, indicates that Ms. Natasha DaSousa, a case aide with the Society, supervised visits for this family for the period of September to December 2016. The affidavit states that Ms. DaSousa has not worked for the Society since 2017. Exhibit "B" to the affidavit are Ms. DaSousa's case notes.

[46] The Society, in its oral submissions and in the affidavit of Ms. Torrance, indicates that the case notes, police occurrence report and email communication attached as exhibits can be relied upon in support of the order sought in their Notice of Motion as they are business records.

[47] This was the extent of the submissions made by counsel for the Society on this issue.

[48] Section 35 of the Evidence Act, S.O. 1990, CHAPTER E. 23 reads as follows:

35 (1) In this section,

"business" includes every kind of business, profession, occupation, calling, operation or activity, whether carried on for profit or otherwise; ("entreprise")

"record" includes any information that is recorded or stored by means of any device. ("document") R.S.O. 1990, c. E.23, s. 35 (1).

Where business records admissible

(2) Any writing or record made of any act, transaction, occurrence or event is admissible as evidence of such act, transaction, occurrence or event if made in the usual and ordinary course of any business and if it was in the usual and ordinary course of such business to make such writing or record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter.

Notice and production

Subsection (2) does not apply unless the party tendering the writing or record has given at least seven days' notice of the party's intention to all other parties in the action, and any party to the action is entitled to obtain from the person who has possession thereof production for inspection of the writing or record within five days after giving notice to produce the same.

[49] The Society, in its submissions, did not draw my attention to compliance with section 35(2) of the Evidence Act.

[50] My review of the file did confirm that the Continuing Record includes an affidavit of service sworn by Courtney Ball on March 22, 2019 and located at Tab 2, Volume 8. That document indicates that Ms. Ball served P.D. and counsel for K.D. with a "Notice of Intention to Rely on Business Records". The document referenced is not attached as an Exhibit to any of the affidavits relied upon by the Society in support of its motion nor was it presented to the court during submissions. Furthermore, the affidavit of service does not identify the records provided to the other parties.

[51] Also included in the Continuing Record at Tab 2, Volume 9 of the Continuing Record, is an affidavit of Ms. Emily Henderson. This affidavit is in support of the Society's 14B motion filed April 5, 2019 seeking an extension of time to file the affidavit of Ms. Samuels.

[52] Exhibit "A' to the affidavit of Ms. Henderson is a letter dated March 22, 2019 from counsel for the Society to P.D. and counsel for K.D. Paragraph 2 of this letter reads as follows:

"Please find enclosed the Society's notice of motion, and supporting affidavits of Lara Torrance sworn March 21, 2019, and Samantha Moeller sworn March 22, 2019, as well as the notice of intention to rely on business records. Please note that the business records upon which the Society will be relying at the motion have been made available to you as exhibits to Ms. Torrance's affidavit".

[53] Furthermore, I note that there is no reference by submissions by counsel for the Society or in the volumes of the Continuing Record to a notice being served on the parties advising them of the Society's intent to rely on the police occurrence report attached as an exhibit to the affidavit of Ms. Samuels.

[54] Given these facts, I find that it is difficult to determine that compliance with section 35 of the Evidence Act has occurred.

[55] Given the reliance by the Society on this evidence in support of its motion, submissions should have been made so as to ensure that these documents were admissible, even in the absence of any objection by counsel for K.D. or P.D.

[56] Furthermore, I am concerned that the manner the Society chose to inform P.D. that a significant portion of the evidence the Society would be relying upon at this motion were business records was not the best option.

[57] P.D. has been self-represented since January 14, 2019. Sullivan, J. granted the Society's request for a motion, seeking an order to terminate, in his endorsement dated March 4, 2019. Discussions should have occurred at that time regarding the nature of the evidence to be presented by all parties in order to ensure all parties and counsel had an awareness of how the motion was to proceed.

[58] It was also open to the Society, during submissions, to seek admission of the case notes and police occurrence report under the common-law hearsay exception as prescribed in the decision of Ares v. Venner, [1970] S.C.R. 608.

[59] The Court in Ares indicated that in order to admit documents as business records under the common law exception, it must be established that the record (1) was recorded at or near the time of the event in question; (2) was made by someone with a personal knowledge of the event recorded and (3) was made in the ordinary course of business.

[60] The affidavit of Ms. Torrance provides limited details regarding the authors of these case notes. The statements contained in paragraphs 6 and 7 of the affidavit identifies the case notes as being Ms. Da Sousa's and Ms. Bastasin's own notes. The affidavit however does not provide any further details as required by the Ares decision.

[61] The Society should have provided evidence such as but not limited to the standard practice and/or protocol in place regarding the creation of case notes by ongoing workers and/or case aides; that such a practice was in a worker and/or case aide's ordinary course of business; and if such notes were made in a timely, accurate and an objective manner without motive to mislead.

[62] Furthermore, the Society should have provided evidence regarding their efforts to obtain the evidence directly from the professionals involved with this family as this would have provided context under which to consider the exhibits provided.

[63] This evidence would have assisted me in determining whether or not the case notes, reports and communication relied upon by the Society could also be relied upon by the Court as business records. The law is clear that simply because a party identifies a document as a business record does not make it necessarily so and even if a document is a valid business record, this does not make this document automatically admissible.

[64] I have reviewed the case notes provided. These notes contain hearsay and opinion evidence.

[65] The affidavit of Ms. Torrance also contains opinion evidence, specifically at paragraph 9 where she states:

"It is my clinical assessment as the supervisor on this file that [the child] was in need of protection from risk of emotional harm, at the time of the Society intervention in July 2016, and in the months following that intervention. [The child] was being exposed to the conflict between [the] parents and subject to multiple methods of intervention that put [the child] at risk of emotional harm. It is my assessment based on the observations of the previous ongoing worker and current ongoing worker that the Society is currently not able to offer any clinical interventions or supports to [the child] or her parents, that would be of assistance to them."

[66] Submissions by the Society did not include any reference to the qualification of Ms. Torrance as an expert.

[67] Bondy, J., in her decision in the Windsor-Essex Children's Aid Society v. S.M.D., 2011 ONCJ 311, wrote about the quality of evidence needed to be presented to the court in summary judgment motions.

[68] At paragraph 31, Justice Bondy writes:

"…I suggest the next thorny issue that often presents itself specifically in the summary judgment context is the question of whether to admit hearsay and if so, how much and when. Such is often the case in the child protection sphere where multiple caregivers and experts may be involved in the determination of protection issues or alternatively in assessing a long-term plan to secure a child's best interests. In these circumstances, the temptation is to simply attach a report or record to the affidavit of the lead social worker or without attachment simply refer to the third-party communication or record. The answer to this issue seems to depend on the result of different judicial approaches to the admission of this evidence."

[69] She continues at paragraphs 33 and 34 of her decision as follows:

"It is well established that traditional rules of evidence prescribe that hearsay evidence is inherently inadmissible and as a result is generally inadmissible. Justice Robert S.G. MacKenzie in Huron-Perth Children's Aid Society v. C.H., 2007 ONCJ 744, described (at paragraph [19]) the four hearsay dangers in a child protection proceeding where the society sought a motion for summary judgment supported by what he described as a mass of affidavit material as:

• First, you have no idea about the perception or the ability to perceive of the witness generally or in a specific situation.

• Second, the ability of the witness to remember and the strengths and frailties of that memory cannot be assessed in any proper way.

• Third, the ability of the witness to communicate. Well this is the biggest error that there could possibly be in affidavit material. We all know that affidavits are, even in the most cautious circumstances, sufficient to sway a trier of fact simply by the ability of the drafter and the drafter's use of the English language. It is as simple as that. You have no idea about the witness' ability to communicate. You have the lawyer's ability to communicate.

• And last, sincerity, that is the demeanour, the trustworthiness, the reasoning for the court to rely on any of that evidence in making a decision that affects people's lives.

For Justice MacKenzie, however, the bottom line relating to the admission of hearsay on a motion for summary judgment was the principle of necessity and reliability, as outlined in R. v. Khan, [1990] 2 S.C.R. 531. He then devised the following test to allow for the admission of hearsay in the affidavit material before him (at paragraph [27]):

• First, the deponent should identify the source of the information and identify that the source must be the original source of the information, or that that person is the person with the personal knowledge or observation of the fact alleged;

• Second, the deponent must explain the reason why the original source of the information has not sworn his or her own affidavit and therefore why it would be necessary for the court to accept hearsay evidence on those facts as opposed to the direct evidence of those facts;

• Third, the deponent must explain the circumstances of how the hearsay evidence was obtained, whey the source would have knowledge of the information and the full details of the information and the source so that the court can ascertain the soundness of the information and the source and assess some kind of level of reliability to that evidence;

• Last, the deponent must explain not only that they believe the evidence from the hearsay source, but they have got to give for every piece of hearsay reasons why they and the court should believe and only on that untested evidence."

[70] Justice Bondy concludes at paragraph 52 of her decision as follows:

"In order to provide some direction in this complex mix of law and discretion against the backdrop of the competing priorities concerning the best interests of children, I respectfully suggest that the following considerations might be considered on the summary judgment motion:

1. Evidence should be by affidavit or other admissible form (for example, transcript of oral questioning or oral evidence with leave);

2. Evidence by affidavit should ideally be within the person's own knowledge (that is, first-hand or direct);

3. Evidence should ideally be in the form of concise, succinct, focused statements of facts.

4. Counsel should avoid affidavits the contain rambling narratives, long recitations, irrelevant facts and provide a virtual "documentary dump truck" or shot-gun approach to the filing of evidence;

5. The affidavit should contain a full evidentiary record and contain all the evidence the party would present if there had been a trial;

6. The responding party must put their "best foot forward" and cannot rely on bald assertions or mere denials. The affidavit should establish a factual basis to support the conclusion that there is a genuine issue for trial (that is, a viva voce hearing), such as issues of credibility or drawing of inferences from conflicting evidence or where more than one inference is available from the evidence;

7. Where evidence is not within the person's own knowledge, it may be obtained from a third party, providing the person identifies the source of the information and states that he or she believes the evidence to be true. Merely attaching third-party reports, letters, observations and statements to an affidavit does not necessarily make the contents of the document or the observations or statements admissible as evidence;

8. An affidavit should address the basis for the court's admission of otherwise inadmissible evidence applying what I would describe as the "MacKenzie" rule (see paragraph [34], above) if it is hearsay evidence;

9. Most cases accept that subrules 14(19) and 16(5) provide a discretion to accept or reject hearsay evidence;

10. Even if the inadmissible evidence is admitted, the court is expressly allowed to draw unfavourable conclusions about it and may attach little weight to it;

11. Less certain is the wholesale admission of any evidence, admissible or not, simply because the motion involves child protection proceedings;

12. In fact, there appears to be no universal acceptance of the proposition that a court should admit inadmissible evidence in a child protection case under the guise of a child's best interests or as part of an inherent jurisdiction to do so.

13. The summary judgment motion should be approached with caution, especially if the request is for Crown wardship. The relief sought will likely have a direct bearing on the nature and sufficiency of the evidence requested on the motion."

[71] Justice Bondy's decision was of course released prior to the Kawartha decision wherein Benotto, J., writing for the majority of the Court, stated at paragraph 3 of paragraph 80 the following:

"The court must conduct a careful screening of the evidence to eliminate inadmissible evidence. The court should not give weight to evidence on a summary judgment motion that would be inadmissible at trial".

[72] Counsel for the Society did submit that the case notes were being relied upon as evidence of the parents' past conduct towards their child. However, I was not provided with any references to section 93 of the CYFSA. Furthermore, I was not provided with any submissions on the admission of the case notes as admissible evidence under this section in light of the Kawartha decision.

[73] In determining whether or not the case notes are to be admissible as business records or evidence of past parenting conduct, the court must determine whether this evidence is relevant and outweighs any prejudice should it be found admissible. (See: R. v. K.A., [1999] O.J. No 3280 (OCA)).

[74] I have reviewed the case notes provided. I find that these notes contain hearsay and opinions and therefore offend several rules and principles attached to the threshold of admission.

[75] Counsel for the Society recognized in her submissions that the case notes contain statements from S.D.-D. Counsel however submitted that these statements were not hearsay as they were not being introduced for the truth of their contents.

[76] These submissions are concerning as the Society is clearly relying on S.D.-D.'s statements to support their position of a finding in need of protection under the criteria of emotional harm as defined under section 74(2)(h) of the CYFSA. The weakness of the submission is the absence of evidence shown by the Society of the nexus between the statements, whether hearsay or not, and the behavioural and/or manifestations required under that section.

[77] The Society, given its position on finding, should have fully addressed the question as to whether or not S.D.-D.'s statements were inherently trustworthy and should be considered reliable and admissible for the truth of their contents under the principled approach to the admission of hearsay as defined in R. v. Bradshaw, 2017 SCC 35, [2017] 1 S.C.R. 865 as well as the position that the statements did not amount to hearsay.

[78] The Society made no submissions on the elements of necessity and reliability. Rather the Society chose to merely state, without referencing any specific statements contained in the case notes, that these were not hearsay.

[79] In other words, counsel for the Society took the position that all of the facts, as detailed in the documents attached as Exhibits, are admissible and therefore can be relied upon in considering the request for summary judgment. I cannot accept this submission.

[80] The case notes of the child protection worker totaled 60 pages, the case notes of the case aide who supervised access visits totaled 62 pages, the police occurrence report totaled 7 pages and the email communication was incomplete as it did not attach, as indicated, a list of questions asked.

[81] The evidentiary record is clear that the Society chose to simply attach the voluminous case notes to an affidavit containing limited context. The affidavit of Ms. Samuels is without a doubt more detailed however is also fraught with inadmissible evidence.

[82] The Society, in its Notice of Motion filed March 25, 2019, also references four affidavits, sworn all sworn between the period of August 31 and September 14, 2016, which was the initial period of the Society's involvement with this family. These affidavits although not lengthy contain, in my review, evidence which may be determined to be hearsay, including one police occurrence report which does not appear to be related to any notice under the Evidence Act.

[83] I recognize the need of the Society to provide some evidence supporting the reasons behind their initial involvement. However, the proper approach would have been to prepare affidavits specifically for the purpose of the summary judgment motion.

[84] The approach adopted by the Society leads me to conclude that it did not fully consider the evidentiary threshold needed to support its motion in light of the applicable legislation, case law and specifically the Kawartha decision.

[85] There is no doubt that the court has a positive obligation to ensure that the most helpful and relevant information is before the court in determining matters within the requirement of a child's best interests (See: Children's Aid Society of London and Middlesex v. K. (S.), [2006] O.J. No 2662 (SCJ); Catholic Children's Aid Society of Toronto v. R. (L.), 2005 ONCJ 19, [2005] O.J. No. 336 (OCJ) and Catholic Children's Aid Society of Toronto v. J.S., [2013] O.J. No. 1762 (OCJ)).

[86] However, one of the court's role is as the evidentiary gatekeeper. This role is not reliant on objections being raised by or on behalf of other parties' before the Court. It is now clear that this responsibility must be met within the context of all applicable legislation and the guiding principles in the case law including the Kawartha decision.

[87] Any party requesting a summary judgment motion must seriously consider the evidence it intends on relying on to support such a request and be prepared to address this issue when the motion is being scheduled. Evidentiary afterthoughts are not likely to be supported by the court.

[88] Given these reasons, I find that the summary judgment motion before me does not contain a record that I can reasonably act upon in granting the Society's request.

Genuine Issue for Trial

[89] Should I have adopted an incorrect conclusion regarding the admissibility of the Society's evidence, I also conclude, on all of the parties' evidence before me, that there are genuine issues, namely regarding the finding in need of protection and the appropriate disposition, that require a trial.

[90] Courts have stressed the need to take a cautious approach to granting summary judgment in child protection proceedings. This cautious approach promotes Hryniak's principle of reaching a fair and just determination on the merits and the concept of fairness as stated in the Kawartha decision.

[91] Hryniak's fairness principles for summary judgment must be applied recognizing the distinctive features of a child protection proceeding. In determining whether there is a genuine issue requiring a trial, the court must exercise exceptional caution and apply the objectives of the CYFSA including the best interests of the child. (Kawartha, paragraph 1 of paragraph 80 and paragraph 64).

[92] On a summary judgment motion, the judge must first determine if there is a genuine issue requiring a trial based only on the written evidence within the court record. If the answer to this question is no, the court must grant summary judgment.

[93] The Society submits, in support of the order sought, that:

(a) There is no clear role the Society has regarding this child and family; and

(b) The Society cannot offer any clinical intervention or resources to this child and family;

[94] In summary, the Society submits that its role is limited to one of monitoring this family. Counsel submits that this role has no clinical benefit. Accordingly, the order sought by the Society in their motion should be granted.

[95] In advancing this position, the Society submitted that it is not relying on the assessment report completed by Dr. Wittenburg. Rather, within the ambit of their motion, the Society is seeking an order allowing either parent to rely on this report within the context of their domestic litigation.

[96] I inquired from counsel my authority to grant such an order. Counsel did not directly refer me to any statutory authority or applicable case law. Counsel submitted that she is seeking this order so as to remove any barrier which could arise in the context of the domestic litigation.

[97] The record is clear that the hybrid parenting capacity/psychological assessment was ordered pursuant to section 98 of the CYFSA and its regulations. It is therefore part of the evidentiary record of the court. All parties are therefore entitled to cross-examine the author of the report should they disagree with any factual foundation and/or conclusion drawn. I cannot accept that the court is to merely disregard such an assessment in the context of this child protection litigation given the differing positions of the parties.

Positions of the Parties

[98] Counsel on behalf of K.D. and P.D. both submit that S.D.-D. is a child in need of protection. Although both parties concede this conclusion, they do not agree on the facts supporting this determination.

[99] P.D. is adamant in her belief that S.D.-D. is a child in need of protection given the abuse suffered at the hands of K.D.

[100] P.D. does not deny that there has not been any third party verification of her allegations of abuse. P.D. however submits that these third parties have failed in meeting their respective obligations to fully investigate her concerns, which she describes as her duty to report, and the disclosures made by S.D.-D.

[101] K.D. denies that he has abused and/or acted inappropriately toward S.D.-D. as claimed by P.D.

[102]